Compelling Payment of College Expenses

Published in Chicago Lawyer Magazine, May 2012 By Daniel Stefani

Ever since I was a young practitioner, I have struggled with Section 513 of the Illinois Marriage and Dissolution of Marriage Act (“IMDMA”) which allows a divorced parent to compel the other to contribute to their child’s post-high school educational expenses. Specifically, I have struggled with the rationalization that divorced parents can be compelled by a court to contribute to their child’s undergraduate college education but non-divorced parents cannot be compelled to do the same. This always struck me as unfair.

Soon after the enactment of the IMDMA in 1977, the Illinois Supreme Court issued an opinion on whether Section 513 was constitutional, given that divorced parents were subjected to a law which did not apply to non-divorced parents.

In 1978, the Illinois Supreme Court in Kujawinski v. Kujawinski, 71 Ill.2d 563, 376 N.E.2d 1382 (Ill. 1978), held that such a statute was constitutional because the obligation upon divorced parents to contribute to the support of their non-minor children’s college educational expenses was reasonably related to a legitimate legislative purpose. Specifically, the Court explained that divorce has a major economic and personal impact on those involved and one of the purposes of the IMDMA is to “mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage”.

The court further justified its position by stating that the statute did not specifically mandate that divorced parents must contribute to their children’s college educational expenses in all cases; rather, the trial court has the discretion to require divorced parents to contribute to their children’s educational expenses based on various factors. Specifically, the court considers the following factors in making any awards in this regard. (1) The financial resources of both parents; (2) the standard of living the child would have enjoyed had the marriage not been dissolved; (3) the financial resources of the child; and (4) the child’s academic performance. 750 ILCS 5/513. See also In Re Support of Pearson, 111 Ill.2d 545, 490 N.E.2d 1274 (Ill. 1986). In Pearson, the Illinois Supreme Court held that a court should not order a party to pay more for his/her children’s college educational expenses than he/she can afford.

Most other states agree with the rationale of the Illinois courts. Unlike Illinois, the Supreme Court of Pennsylvania invalidated their statute which allowed the court to order a parent who is separated, divorced, unmarried or otherwise subject to a support obligation to provide for the educational costs of his/her child, whether it is before or after the child has reached the age of eighteen. Curtis v. Kline, 542 Pa. 249, 254, 260, 666 A2d 265, 267, 270 (Pa. 1995). The Pennsylvania court held that the statute was not rationally related to a legitimate state interest. The court further explained that the statute classified adult children according to the marital status of their parents, allowing the benefit to one group but not the other.

The court further explained that there are children who need financial assistance to attend college and who have a parent unwilling to provide help, so it is not rational for the state to provide only certain of those children with the legal means to overcome their difficulties.

With this backdrop, Illinois courts have recently been ordering divorcing parents, pursuant to Section 513, to procure student loans and/or personally guarantee their child’s student loans to fund their obligations to pay for college. This remedy seems to go beyond the purpose and authority of the statute. The issue has not been specifically raised in any appellate or state court opinion thus far. The Supreme Court has held that a divorcing parent should not be ordered to pay for more than his or her children’s Section 513 college expenses that he can afford. The question becomes whether the court believes that the procurement of student loans and/or guarantee of such loans is affordable by the divorcing parent despite a current lack of sufficient income or assets. Such a justification seems to go beyond the intent of the statute which requires the court to look at only the parties’ current financial circumstances.

Although every child should have the opportunity to go to college, not all parents can afford to pay such expenses. Booth v. Booth, 122 Ill.App.2d 1, 258 N.E.2d 834 (1st Dist. 1970). In Booth, the respondent was ordered to pay $165 per month toward the college expenses of his two children, in addition to various other support and maintenance obligations. Based on the respondent’s financial situation, the Appellate Court held that the amount of the contribution was “unreasonably burdensome and unfair” to the respondent. However, the court recognized the respondent’s obligation and ordered him to pay $50 per month per child after majority. The court stated that “we realize that the amount we have ordered for education is inadequate but we cannot in all fairness order payments which are beyond the ability of the defendant to pay. It is significant that the respondent has numerous other support and maintenance obligations in addition to his Section 513 obligations and that he had a limited ability to provide for himself and his second wife.”